It is unlawful for any employer to refuse to hire, employ, license, discharge, or otherwise discriminate against an individual in compensation, promotion, or terms, conditions, or privileges of employment because of an individual's legal use of consumable products that:
• Is before the beginning or after the conclusion of the employee's work hours,
• Is off of the employer's premises, and
• Does not involve use of the employer's equipment or other property (NY Labor Law 201-d).
Note, however, that an employer may enforce an established substance abuse or alcohol program or workplace policy.
The New York State Human Rights Law (NYSHRL) prohibits employment discrimination based on certain classifications, including disability. Some states address alcohol or drug use in the disability category; New York does not. The NYSHRL covers employers with four or more employees (NY Exec. Law Art. 15 Sec. 290 et seq.).
Americans with Disabilities Act (ADA) considerations. Alcohol abuse is considered a disability under the federal ADA. Employers that are covered by both New York law and the ADA must comply with the ADA requirements and treat alcohol abuse as a disability. The ADA does not consider current use of illegal drugs to be a disability. The ADA covers employers with 15 or more employees. There are more details on substance abuse and the ADA.